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offenses. Under 18 U.S.C. § 2119 at the time, carjacking carried a maximum sentence of 15 years, but the maximum sentence was increased to 25 years if serious injury resulted (subsection (b), or up to life if death resulted (subsection (c)). Neither the indictment nor the court’s instructions to the jury referenced serious injury as an element of the offense, but the court found that serious injury was shown and thus sentenced defendant to 20 years on that offense. U.S. Supreme Court rejects government’s contention that the subsections merely describe “sentencing enhancements” rather than elements of the offense. To the extent the structure of the statute or the legislative history allow for a different interpretation, however, such a reading raises serious due process and Sixth Amendment jury guarantee concerns, citing and discussing In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (State must prove every element of offense beyond a reasonable doubt); Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975) (Maine couldn’t assume malice in murder prosecution); Patterson v. New York, 432 U.S. 197, 215, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977) (State could require murder defendant to prove “severe emotional disturbance” as an affirmative defense); and McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986) (no requirement that State must prove all factors leading to mandatory minimum sentence beyond a reasonable doubt ). But “under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.” Because the government’s argument implicates this constitutional concern, the majority chooses instead to interpret § 2119 as creating three separate offenses; thus, serious injury and death are elements of those offenses that must be proved to the jury beyond a reasonable doubt . Distinguishing Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) (as a general rule, recidivism is a sentencing factor, not an element of an offense) and Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990) (State may provide that aggravating factors justifying death sentence are to be found by judge, not jury; Walton “characterized the finding of aggravating facts falling within the traditional scope of capital sentencing as a choice between a greater and a lesser penalty, not as a process of raising the ceiling of the sentencing range available.”). Stevens concurs, would require jury finding of factors raising minimum as well as maximum sentences. Kennedy, writing for Rehnquist, O’Connor, and Breyer, dissents, expressing concern, among other things, that the majority’s reading of the right to jury trial implicates the viability of the federal (and possibly some state) sentencing guidelines. Walton overruled by Ring v. Arizona (June 24, 2002), above. 2. PRIOR CONVICTIONS – CONVICTION NOT FINAL Wilder v. State, 304 Ga.App. 891, 698 S.E.2d 374 (July 8, 2010). Reversed on other grounds, 290 Ga. 13, 717 S.E.2d 457 (November 7, 2011). Defendant’s convictions for child molestation and related offenses affirmed, but recidivist sentencing reversed; prior conviction couldn’t be used for recidivist sentencing because defendant’s motion for new trial was still pending. Rejects State’s contention that prior conviction should be considered because “Wilder purposefully delayed finalization of his Paulding County conviction and therefore forfeited his right to complain of his sentence.[fn] But the requirement that a previous conviction be final before being considered for enhanced punishment is a bright-line rule. We find no authority for taking exception to that rule and decline to create an exception here.” Frazier v. State, 302 Ga.App. 346, 691 S.E.2d 247 (February 12, 2010). Trial court could consider other convictions not yet final in fixing sentence where the other convictions were not being used to impose recidivist or statutorily enhanced sentence. “See, e.g., Croker v. Smith, 225 Ga. 529, 532(4) (169 S.E.2d 787) (1969) (‘A conviction which is on appeal is not a conviction within the meaning of [OCGA § 17-10-2].’); Mitchell v. State, 202 Ga.App. 100(2) (413 S.E.2d 517) (1991) (accord),” and “ Covington v. State, 226 Ga.App. 484, 485(3) (486 S.E.2d 706) (1997) (‘When previous convictions are relied upon as the ground for imposing enhanced punishment [pursuant to OCGA § 16-13-30(d)], the convictions must be final.’ (citations omitted); Dunn v. State, 208 Ga.App. 197, 198 (430 S.E.2d 50) (1993) (accord).” Allen v. State, 286 Ga. 273, 687 S.E.2d 417 (November 9, 2009). Prior convictions can’t be used for recidivist sentencing while still pending on appeal, citing Croker v. Smith, 225 Ga. 529(4) (169 S.E.2d 787) (1969) and Melton v. State, 216 Ga.App. 215, 216 (454 S.E.2d 545) (1995). Land v. State, 291 Ga.App. 617, 662 S.E.2d 368 (May 21, 2008). “It is true that a prior conviction must be final before it can be considered for purposes of imposing recidivist sentencing. See Mitchell v. State, 202 Ga.App. 100, 101(2) (413 S.E.2d 517) (1991). A conviction is deemed final for purposes of imposing recidivist punishment when the defendant has been adjudicated guilty and has been sentenced, and when no appeal on the prior charges remains pending. See Sutton v. State, 263 Ga.App. 188, 190(1), fn. 5 (587 S.E.2d 379) (2003); Dunn v. State, 208 Ga.App. 197, 198(4) (430 S.E.2d 50) (1993).” Here, defendant’s prior conviction was “final” although he was still on probation, distinguishing Davis v. State,